State False Statement Laws: Should the Government Act as the Truth Police?

State False Statement Laws:

Should the Government Act as the Truth Police?

By Matt Nese and Brennan Mancil

This Issue Review discusses the seventeen states that have adopted constitutionally vulnerable “false statement” laws that unwisely put government in the business of acting as the “truth police.” Such statutes cover general speech about a candidate or public official, as well as speech about a candidate’s particular voting record or stands on issues.

Judgments about violations of such laws are often done on the basis of biased or partisan determinations by unelected government regulators, allowing these government bureaucrats to unfairly influence an election.

Numerous court cases have demonstrated that false statement laws are constitutionally questionable and susceptible to legal challenge because of their impact on speakers’ First Amendment political speech rights and Fourteenth Amendment due process rights.

In particular, in SBA List v. Driehaus, the United States Supreme Court considered a procedural question in the context of Ohio’s false statement law: namely, whether a would-be speaker could sue to challenge the law before it had been enforced against him. The Court unanimously ruled that such a challenge was appropriate, as the speaker had a legitimate concern that its desired expression might be found to be “false” by the Ohio regulators. Accordingly, challenges to false statement statutes in Ohio (and the sixteen other states with these statutes) are now easier to mount in the wake of the unanimous SBA List opinion.

If any of these state false statement statutes are challenged, there is a high likelihood that they will be found unconstitutional. Any potential legal action will cost states a great deal of money defending their offending statutes, and will distract these Attorney Generals from meritorious legal work. Additionally, it is probable that states will be forced by the courts to award legal fees to successful plaintiffs. Legal fee awards are frequently costly – often well over one hundred thousand dollars.

Seventeen states – Alaska, Colorado, Florida, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Montana, North Carolina, North Dakota, Ohio, Oregon, Tennessee, Utah, West Virginia, and Wisconsin – have some form of false statement law, many of which carry severe penalties. These penalties are particularly problematic given that the “truth” or “falsity” of the speech at issue necessarily turns upon determinations by (often partisan) government regulators.

Many existing libel and slander laws provide sufficient protection for individuals truly harmed by defamatory campaign speech. To this end, some candidates have sued and recovered damages when injured by such speech.

Accordingly, out of respect to the First Amendment and due process rights of their constituents, state policymakers should repeal existing false statement laws in their states and avoid adopting proposals to regulate “false” campaign speech.

Introduction

Generally, false statement laws prohibit “false” speech about candidates or public officials (including their official voting records). Analogous libel and slander statutes – which also penalize false speech – require jury consideration (and often proof of actual malice), in accordance with the constitutionally guaranteed right to due process. False statement laws, by contrast, task often unelected government regulators with evaluating the truth or falsity of the speech at issue, transforming the government into the truth police.

Employed by seventeen states, false statement laws seriously harm the First Amendment’s protection of free discussion. Because they permit the government to police political speech – the speech at the very heart of the debate over who should govern – such laws are particularly susceptible to abuse by those wishing to silence their political opponents. As a result, numerous court cases have demonstrated that false statement laws are constitutionally questionable and susceptible to legal challenge because of their impact on speakers’ First Amendment political speech rights and Fourteenth Amendment due process rights. This dubious legality, along with false statement laws’ tendency to stifle constitutionally protected expression and invite costly litigation, is described in this report.

False Statement Laws

False statement laws grant government regulators extraordinary power to determine the “truth” of political speech and to impose hefty fines – or imprisonment – upon those found to be in violation of these statutes. Ostensibly written to prevent the proliferation of mistruths during a political campaign, false statement laws have the direct effect of stifling speech, and are particularly susceptible to abuse by candidates seeking to silence their critics.

Generally, once a candidate challenges the “truth” of a claim about him, an unelected panel of government officials holds a hearing to determine whether – in their collective opinion – the speech is “false.” Given the time-sensitive nature of election-related speech, these cases are rarely decided in time for the speech to be effective. Further, even if the false statement complaint is dismissed, the speaker has been discredited in the court of public opinion, due to public knowledge of the complaint against him, allowing the complainant to gain a tangible campaign advantage without ever having to prove the falsity of the statement at issue.

The reason these abusive campaign tactics occur is because the law requires that regulators accomplish an almost impossible task – arbitrating truth from falsehood in some of this country’s oldest and most divisive political debates. Whether the alleged false statement concerns abortion, taxes, climate change, or any other political issue, there are sure to be passionate arguments made by citizens and organizations on both sides of a debate. False statement laws task government bureaucrats with picking a side in a political dispute in the midst of a heated election – when it is precisely the voters who should have the final say. As a result, these statutes work grave harm upon sensitive due process and First Amendment rights.

Existing libel and slander laws provide ample protection against false speech that causes real damage. These laws repeatedly succeed in compensating the victims of false speech, frequently resulting in favorable settlement or the payment of damages. For example, since Nevada’s false statement law[1] was deemed unconstitutional in Nevada Press Association v. Nevada Commission on Ethics,[2] candidates in the state have turned to existing libel and slander laws to gain recompense from damaging speech, and have done so with much success: the cases are often settled with cash payments or result in verdicts in favor of plaintiffs.[3]

Moreover, as the District Court judge in SBA List v. Driehaus recognized, decades of controlling Supreme Court precedent make clear that, “associating a political candidate with a mainstream political position, even if false, cannot constitute defamation, as a matter of law.”[4] Thus, statutes attempting to regulate such a category of speech via “false statements” remain especially vulnerable to a legal challenge.

Further, it is extremely difficult to enforce false statement laws without violating the Fourteenth Amendment’s guarantee of due process. Indeed, a United States federal court found that the “extremely abbreviated”[5] process for finding a violation of Nevada’s false statement law departed from full due process in numerous and glaring ways.[6] The Court declared the law unconstitutional on its face, and enjoined the Nevada Commission on Ethics from enforcing it.[7] Thus, this case demonstrates that, even if the state has an interest in ensuring fairness in elections, attempts to regulate the “truth” or “falsity” of campaign speech are likely to infringe upon due process rights more than can be constitutionally justified.

False statement laws also violate the First Amendment because they operate to prohibit speech that the Constitution explicitly protects. Multiple Supreme Court decisions denounce laws banning false statements as antithetical to the First Amendment. Indeed, because political speech is essential to self-government, the Court reiterated in Snyder v. Phelps[8]that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”[9] In United States v. Alvarez, the Court applied this broad rule in a narrower context, holding that false statements about military honors are indeed protected by the First Amendment.[10]Alvarez, which was quoted favorably in the SBA List v. Driehaus decision, further noted:

The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth…. The theory of our Constitution is that the best test of truth is the power of the thought to get itself accepted in the competition of the market.[11]

Because of this Supreme Court precedent as well as the significant First Amendment and Fourteenth Amendment due process concerns implicated by false statement statutes, states with these speech-stifling provisions can expect challenges to these laws.

The Impact of SBA List v. Driehaus

On June 16, 2014, the Supreme Court issued its unanimous decision in SBA List v. Driehaus, a procedural challenge brought in the context of Ohio’s false statement law. While the Court did not directly assess the constitutionality of Ohio’s particular statute, its decision ensured that challenges to such speech-suppressing laws would receive meaningful review in the federal courts. Thus, this decision implicates the seventeen state false statement law statutes enumerated later in this report.

To be sure, Ohio’s false statement law is constitutionally questionable. “Any person” may file a complaint that any political statement is a lie. A state agency comprised of partisan officials – the Ohio Elections Commission – then determines whether there is “probable cause” that the statement is indeed untrue. Upon such finding, the complainant gets to conduct an invasive investigation, including depositions, electronic discovery, interrogatories, etc. If, after such an investigation, the full Commission finds a violation, it refers the case to a prosecutor for trial.

Thus, under color of state law, a member of Congress (for example) may obtain a free pass to tear apart his political foes. This is a far cry from the constitutional command that governments “make no law…abridging the freedom of speech.”

The plaintiff, Susan B. Anthony (or “SBA”) List, is a pro-life organization. During the 2010 election cycle, after then-Congressman Steven Driehaus voted in favor of the Patient Protection and Affordable Care Act, SBA List announced it would run an advertising campaign informing voters that Driehaus voted to publicly fund abortions. The veracity of this statement – like many assertions about the administrative state – is a complex matter about which there is certainly a measure of dispute. What’s not arguable is that some consider the statement to be objectively true.[12]

Rather than accepting that tough ads are an assumed risk of participating in politics, or attempting to counter SBA List’s view of how the Affordable Care Act works, former Congressman Driehaus sought to silence SBA List. He threatened legal action against a private billboard owner willing to rent space to display SBA List’s message, and filed a complaint under Ohio’s false statement law. Another unrelated, advocacy group declined to run similar ads about Driehaus for fear of being hauled before the Ohio Elections Commission.

During the discovery process associated with his ethics complaint, Congressman Driehaus demanded depositions of both SBA employees and employees of outside groups, as well as “SBA’s communications with allied organizations, political party committees, and Members of Congress and their staffs.”[13] SBA List responded by filing a case in federal court asserting the unconstitutionality of Ohio’s law. After the election – which he lost – Driehaus withdrew his complaint and moved to Africa to work for the Peace Corps.

Even though the Ohio Elections Commission found probable cause that SBA List’s statement about Congressman Driehaus was untruthful, and even though SBA List wanted to run ads about other Ohio elected officials and “taxpayer-funded abortion,” the Sixth Circuit Court of Appeals ruled that SBA List couldn’t even challenge the law, because, by that point in time, Driehaus had withdrawn his complaint. To sue – and thus ensure that it would not be hauled before the Commission in the future – the Sixth Circuit ruled that SBA List would have to wait for an opportunity to go through the entire process again (and, after having expended time and resources, hope that this next complaint was not also withdrawn).

Under longstanding judicial precedent, plaintiffs can sue before they violate a law if they “allege[] a credible threat of enforcement.”[14] This is particularly true in the First Amendment context – forcing a plaintiff to speak and then accept any sanctions of a likely unconstitutional law before they may challenge such law’s constitutionality is an onerous burden, and cannot be reconciled with the Constitution. Indeed, most people will simply decline to speak, which is precisely the opposite of the First Amendment’s purpose.[15]

It is worth emphasizing that the Court’s opinion was unanimous. The nine justices – who have expressed strikingly different views of the First Amendment in other notable political speech cases[16]– all want to ensure that states do not limit fundamental rights, and then functionally shut the door on judicial review of the offending laws. As Chief Justice Roberts wrote in the 2007 case, FEC v. Wisconsin Right to Life, procedural roadblocks themselves “constitute[] a severe burden on political speech.”[17]

The result of SBA List v. Driehaus is particularly welcome because laws like Ohio’s can, in practice, be wielded as partisan political tools. When Congressman Driehaus filed his complaint, he was invoking his rights as an Ohioan – and “‘the Commission has no system for weeding out frivolous complaints.’”[18] “Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents.”[19]

Given such potential gamesmanship, the unanimous Court decided that SBA List needed its day in court now, not later. Court watchers and state legislators alike can expect future challenges to false statement laws nationwide to arise from the Court’s unanimous opinion in SBA List.

If any of these state false statement statutes are challenged, there is a high likelihood that they will be found unconstitutional. Any potential legal action will cost states a great deal of money defending their statute, and will distract these Attorney Generals from meritorious legal work. Additionally, it is probable that states will be forced by the courts to award legal fees to successful plaintiffs. Legal fee awards are frequently costly – often well over one hundred thousand dollars.

For the reasons given above, state policymakers in the seventeen states with false statement laws should act to repeal these statutes before their state is faced with a costly – and likely successful – legal challenge.

False Statement Laws Across the Nation

Seventeen states enforce some form of false statement law. Penalties for speakers found in violation of these statutes are often severe, and range from heavy fines to imprisonment. As the particular statutes differ between states, each regulation (whether civil or criminal), and the attendant punishments, are summarized in the following table. The appendix to this report contains further detail about each state’s law.

Conclusion

While false statement laws empower government as the truth police ostensibly to protect individuals against defamatory speech, they have the end result of significantly impacting speakers’ Fourteenth Amendment due process rights and First Amendment political speech rights. Consequently, court cases have shown false statement laws to be susceptible to legal challenges on these grounds. Moreover, existing state libel and slander laws offer sufficient protection against defamatory speech. Harmed speakers can and have sued and retrieved damages using existing libel and slander laws, when appropriate.

In practice, false statement laws are often employed as a political tactic to silence speech that some individual or entity dislikes or disagrees with. Numerous cases in state and federal court have established that statements are no less protected simply because of their falsity. Implicit in this principle is the recognition that truth and falsity are very often relative, and should be determined by the hearer of a statement – not a supreme regulatory body stifling the flow of information into the marketplace of ideas.

The presence of false statement laws in seventeen states indicates the pervasiveness of this problem. First Amendment concerns are pressing when considering the repeal of these laws, especially when they carry such costly penalties.

The great misconception behind false statement laws is that false statements are inherently libelous, or defamatory. As a matter of law, this cannot be the case. Furthermore, to repeat the opinion of the U.S. Supreme Court in United States v. Alvarez, “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”[20]

State policymakers should act to repeal these laws by honoring this principle. If faced with proposals to enact these laws, policymakers should look to the courts and the First Amendment before they attempt to regulate the most basic privilege of a free society: the freedom of speech.

Appendix: State False Statement Statutes

For further analysis of each state’s false statement law statute, this appendix provides the text of and cites to the corresponding statutes of the seventeen states with these laws.

(a) A person commits the crime of campaign misconduct in the second degree if the person

(3) knowingly makes a communication, as that term is defined in AS 15.13.400,

(A) containing false factual information relating to a candidate for an election;
(B) that the person knows to be false; and
(C) that would provoke a reasonable person under the circumstances to a breach of the peace or that a reasonable person would construe as damaging to the candidate’s reputation for honesty or integrity, or to the candidate’s qualifications to serve if elected to office.

(1) (a) No person shall knowingly make, publish, broadcast, or circulate or cause to be made, published, broadcasted, or circulated in any letter, circular, advertisement, or poster or in any other communication any false statement designed to affect the vote on any issue submitted to the electors at any election or relating to any candidate for election to public office.

(b) Any person who violates any provision of paragraph (a) of this subsection (1) commits a class 1 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(2) (a) No person shall recklessly make, publish, broadcast, or circulate or cause to be made, published, broadcasted, or circulated in any letter, circular, advertisement, or poster or in any other communication any false statement designed to affect the vote on any issue submitted to the electors at any election or relating to any candidate for election to public office. Notwithstanding any other provision of law, for purposes of this subsection (2), a person acts “recklessly” when he or she acts in conscious disregard of the truth or falsity of the statement made, published, broadcasted, or circulated.

(b) Any person who violates any provision of paragraph (a) of this subsection (2) commits a class 2 misdemeanor and, upon conviction thereof, shall be punished as provided in section 18-1.3-501, C.R.S.

(3) For purposes of this section, “person” means any natural person, partnership, committee, association, corporation, labor organization, political party, or other organization or group of persons, including a group organized under section 527 of the internal revenue code.

Sec. 104.271 (2) Any candidate who, in a primary election or other election, with actual malice makes or causes to be made any statement about an opposing candidate which is false is guilty of a violation of this code.

A. The Legislature of Louisiana finds that the state has a compelling interest in taking every necessary step to assure that all elections are held in a fair and ethical manner and finds that an election cannot be held in a fair and ethical manner when any candidate or other person is allowed to print or distribute any material which falsely alleges that a candidate is supported by or affiliated with another candidate, group of candidates, or other person, or a political faction, or to publish statements that make scurrilous, false, or irresponsible adverse comments about a candidate or a proposition…The legislature further finds that it is essential to the protection of the electoral process to prohibit misrepresentation that a person, committee, or organization speaks, writes, or acts on behalf of a candidate, political committee, or political party, or an agent or employee thereof.

[…]

C.(1) No person shall cause to be distributed, or transmitted, any oral, visual, or written material containing any statement which he knows or should be reasonably expected to know makes a false statement about a candidate for election in a primary or general election or about a proposition to be submitted to the voters.

Section 42. No person shall make or publish, or cause to be made or published, any false statement in relation to any candidate for nomination or election to public office, which is designed or tends to aid or to injure or defeat such candidate.

No person shall publish or cause to be published in any letter, circular, advertisement, poster or in any other writing any false statement in relation to any question submitted to the voters, which statement is designed to affect the vote on said question.

Whoever knowingly violates any provision of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months.

(3) A person or a person’s agent who knowingly makes, publishes, disseminates, circulates, or places before the public, or knowingly causes directly or indirectly to be made, published, disseminated, circulated, or placed before the public, in this state, either orally or in writing, an assertion, representation, or statement of fact concerning a candidate for public office at an election in this state, that is false, deceptive, scurrilous, or malicious, without the true name of the author being subscribed to the assertion, representation, or statement if written, or announced if unwritten, is guilty of a misdemeanor.

Subdivision 1. Gross misdemeanor. A person is guilty of a gross misdemeanor who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material with respect to the personal or political character or acts of a candidate, or with respect to the effect of a ballot question, that is designed or tends to elect, injure, promote, or defeat a candidate for nomination or election to a public office or to promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.

A person is guilty of a misdemeanor who intentionally participates in the drafting of a letter to the editor with respect to the personal or political character or acts of a candidate, or with respect to the effect of a ballot question, that is designed or tends to elect, injure, promote, or defeat any candidate for nomination or election to a public office or to promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.

Subdivision 2. Exception. Subdivision 1 does not apply to any person or organization whose sole act is, in the normal course of their business, the printing, manufacturing, or dissemination of the false information.

§ 23-15-875. Prohibitions against charges with respect to integrity of candidate; proceedings against violators

No person, including a candidate, shall publicly or privately make, in a campaign then in progress, any charge or charges reflecting upon the honesty, integrity or moral character of any candidate, so far as his private life is concerned, unless the charge be in fact true and actually capable of proof; and any person who makes any such charge shall have the burden of proof to show the truth thereof when called to account therefor under any affidavit or indictment against him for a violation of this section. Any language deliberately uttered or published which, when fairly and reasonably construed and as commonly understood, would clearly and unmistakably imply any such charge, shall be deemed and held to be the equivalent of a direct charge. And in no event shall any such charge, whether true or untrue, be made on the day of any election, or within the last five (5) days immediately preceding the date of any election.

Any person who shall willfully and knowingly violate this section shall be guilty of a misdemeanor, and upon the affidavit of any two (2) credible citizens of this state, before any judicial officer having jurisdiction of misdemeanors, said officer shall thereupon forthwith issue his warrant for the arrest of said alleged offender, and when arrested the officer shall forthwith examine into the matter, and if the proof of guilt be evident or the presumption great, the officer shall place the accused person under bond in the sum of Five Hundred Dollars ($ 500.00), with two (2) or more good sureties, conditioned that the person bound will appear at the next term of the court where the offense is cognizable, and in addition that the person bound will not further violate this section; and additional affidavits may be filed and additional bonds may be required for each and every subsequent offense. When and if under a prosecution under this section, the alleged offender is finally acquitted, the persons who made the original affidavit shall pay all costs of the proceedings.

(a) Class 2 Misdemeanors. – Any person who shall, in connection with any primary or election in this State, do any of the acts and things declared in this subsection to be unlawful, shall be guilty of a Class 2 misdemeanor. It shall be unlawful:

(8) For any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.

16.1-10-04. Publication of false information in political advertisements – Penalty.

A person is guilty of a class A misdemeanor if that person knowingly, or with reckless disregard for its truth or falsity, publishes any political advertisement or news release that contains any assertion, representation, or statement of fact, including information concerning a candidate’s prior public record, which is untrue, deceptive, or misleading, whether on behalf of or in opposition to any candidate for public office, initiated measure, referred measure, constitutional amendment, or any other issue, question, or proposal on an election ballot, and whether the publication is by radio, television, newspaper, pamphlet, folder, display cards, signs, posters, billboard advertisements, websites, electronic transmission, or by any other public means. This section does not apply to a newspaper, television or radio station, or other commercial medium that is not the source of the political advertisement or news release.

(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:

(9) Make a false statement concerning the voting record of a candidate or public official;

(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.

As used in this section, “voting record” means the recorded “yes” or “no” vote on a bill, ordinance, resolution, motion, amendment, or confirmation.

(1) No person shall cause to be written, printed, published, posted, communicated or circulated, any letter, circular, bill, placard, poster, photograph or other publication, or cause any advertisement to be placed in a publication, or singly or with others pay for any advertisement, with knowledge or with reckless disregard that the letter, circular, bill, placard, poster, photograph, publication or advertisement contains a false statement of material fact relating to any candidate, political committee or measure.

It is a Class C misdemeanor for any person to publish or distribute or cause to be published or distributed any campaign literature in opposition to any candidate in any election if such person knows that any such statement, charge, allegation, or other matter contained therein with respect to such candidate is false.

A person may not knowingly make or publish, or cause to be made or published, any false statement in relation to any candidate, proposed constitutional amendment, or other measure, that is intended or tends to affect any voting at any primary, convention, or election.

(c) Any person who shall, knowingly, make or publish, or cause to be made or published, any false statement in regard to any candidate, which statement is intended or tends to affect any voting at any election whatever…Is guilty of a misdemeanor, and, on conviction thereof, shall be fined not more than ten thousand dollars, or confined in jail for not more than one year, or, in the discretion of the court, shall be subject to both such fine and imprisonment.

[15]See Whitney v. California, 274 U.S. 357, 377 (Brandeis, J., concurring) (“[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”).